May 22, 2006

Justices said four Brigham City, Utah, police officers were justified in going inside a home in 2000 after peeking through a window and seeing a fight between a teenager and adults.

Chief Justice John Roberts, writing for the unanimous court, said that officers had a reasonable basis for going inside to stop violence, even though they could not announce their arrival over loud noise of a party.

"The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," Roberts wrote.

The trial judge had ruled that police had violated the Fourth Amendment's prohibition against unreasonable searches by failing to knock before entering the house.

When the adults realized the officers were inside the house, they allegedly became abusive and were charged with disorderly conduct, intoxication and contributing to the delinquency of a minor - all misdemeanors.

So the cops can barge into your house to break up a fight? Better stop fighting in front of open windows.

But here's my question. It's a sports question. A sports and writing question. We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?

Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.

MORE: Here's the whole opinion. This is the analysis of why the search was reasonable:

The officers were responding, at 3 o’clock in the morning, to complaints about a loud party. As they approached the house, they could hear from within “an altercation occurring, some kind of a fight.” “It was loud and it was tumultuous.” The officers heard “thumping and crashing” and people yelling “stop, stop” and “get off me.” As the trial court found, “it was obvious that … knocking on the front door” would have been futile. The noise seemed to be coming from the back of the house; after looking in the front window and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. From there, they could see that a fracas was taking place inside the kitchen. A juvenile, fists clenched, was being held back by several adults. As the officers watch, he breaks free and strikes one of the adults in the face, sending the adult to the sink spitting blood.

In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning.

(Usage buffs may discuss whether the sentence I've put in boldface should be in the present tense.)

Althouse ... ponders why the Chief Justice all-of-a-sudden lapsed into a screenwriter's present tense in the final sentence of this paragraph... Are these the Chief's ways of giving we Court-watchers something to talk about on a light decision day?

37 comments:

Dave's right. Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.

I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.

Maybe Justice Robert threw in the hockey reference because fighting is supposed to be against the rules in hockey, as in life - so the police had the immediate right to enter to put an end to it. Fighting is the entire point of boxing and the ref won't step in until one of the combatants can no longer defend himself.

1) The key to winning is to encumber your opponent in his equipment (hence the Rob Ray strategy - http://www.hockeygoon.com/ray.html).

2) The refs wait to break up fights until the damage done outweighs their personal risk. Hence they join fights only when the damage is great (e.g., blood is drawn) or the personal risk is low (e.g., one opponent has all but vanguished his opponent, making the fight a more orderly beating).

As to the analogy - the boxing referee interrupts a one-sided fight either to revive the possibility of competitive pugilism ("Break!") or when the possibility of revival is foreclosed. The hockey referee interrupts a fight in order to return to the pre-fight status quo. Hopefully, the police officers function more like hockey referees, and less like boxing referees.

Jim said..."Why is an argument using a sports analogy o.k. (a predominantly foreign sport at that) but an analogy based on foreign law not o.k.?"

I'll bite. One reason might be because the sporting reference - even assuming it is not a brief rhetorical flourish intended to underline the point - is tethered to American culture and practise, and appeals to matters that are roundly and fully comprehended by Americans, while an analogy based on foreign law, by definition (etymologically, the warm-sounding "foreign" is much more closely related to the distinctly colder "alien") is not. American sports often pertain directly to American notions of fairness ordered within rules, just as American law tends to be anchored in the premise of fairness ordered within rules.

I agree with what people are saying about hockey fights and their aptness here. I also think this shows another side of Roberts as a good writer: displaying some wry humor and hipness in his understanding of the reality of hockey fights.

I think he had a writing problem to solve, too. He may well have understood that in a way hockey is the more apt analogy for anyone who has watched hockey much but limiting his comparison to that might be confusing for others.

boxing refs are there only to maintain that the fight stays within certain rules. including beating an opponent on the ground, etc - the 'one-sided' part of the comment

a hockey referee is theoretically supposed to stop a fight, but as has been said, they generally wait until the fight is over or getting out of hand.

so the boxing reference says 'cops are not there simply to manage a fight within certain (limited) rules of civility and mismatch', the hocket part says 'cops are also not expected to pretend to intervene while actually abiding by boxing rules'. I'm not sure if that's more of a knock on police officers or NHL referees.

Jim,I don't know what part of the country you live in, but boxing and hockey are hardly alien sports in many parts of America. Even those who do not routinely attend boxing matches are familiar with the general principles of the sport, as I think most of us are with hockey.

Something like crew or lacrosse are probably more regional than either boxing or hockey. (Even in the southern states there is an ice hockey presence--perhaps not as prevalent as in, say, Maine or Minnesota, but it is still there.)

Find someone not on either of the coasts and chances are that they know nothing about either lacrosse or crew. And even on the coasts relatively few people know about those sports...

I've never lived anywhere in the US but Texas and New Mexico and the Hockey reference made perfect sense to me. In the context of the case it was an excellent analogy. To me better than the boxing one.

Something like crew or lacrosse are probably more regional than either boxing or hockey. (Even in the southern states there is an ice hockey presence--perhaps not as prevalent as in, say, Maine or Minnesota, but it is still there.)

Or in Wisconsin, home to both the 2006 Women's and Men's NCAA Division Ice Hockey Champions.

As one who played hockey for 45 years, and have been in more than a few fights, I have two comments.

First, the officials don't see a lot of what goes on. The dirty stuff happens away from the play. Fighting is the self-policing that has always been a part of the game.

Second, the padding is a small cause of the relatively minor damage from a punch. The main factor is that you can't plant your feet whilst on skates. They are all arm punches - the equivalent of a jab, not a haymaker.

In any event, as I read it, this analogy was neither pursuasive nor authoritative, it simply underlines the point he was making, in an effort to make the opinion more accessable. That seems like fair game.

Well, I am a hockey referee, so I'll offer up some grist. First of all, a referee doesn't break up a fight in hockey. The linesman does. The referee stands back out the line of fire, watches it all, and assigns penalties. But in this opinion, I'll assume Roberts meant 'referee' to mean the broader 'official.'

Anyway, previous posters are right in that a hockey official's first priority is self-preservation, so during our training, we are told not to break up a fight while punches are being thrown. We are to either 1) jump in and break it up before the fisticuffs begin (the scuffle stage, when the players are pushing, shoving, jawing, etc.; and yes, thats what it's called in the rule book, 'fisicuffs'), or 2) wait until one player has an advantage over the other, when there's less chance of the official being struck by a fist, elbow, etc. That means one player has another on the ice, in a headlock, has his jersey pulled over his head, etc.

It should also be noted that, given all the padding that hockey players wear. . .

That's why I always thought fighting in football was kind of pointless. I mean, there are some things you can do to a guy in shoulder pads and a helmet, but unless you can land something in the groin it's kind of fruitless and the hitter would probably get hurt more from punching a hard plastic helmet.

Hockey referees allow fights to play out so that the participants will wear themselves out and so extracurricular vigilante rules enforcement won't ensue once play resumes. It's supposed to be cathartic and prevent more serious injuries later in the game when guys start carving one another with all that pent up aggression. Of course, if one or the other is about to do serious damage, they'll step in.

I'm ignorant of any reason why that sentence should not be in the past tense like the ones preceding it.

Assume Roberts has gone back in time and frozen at the moment before the youth breaks free. So he speaks in the past tense when describing things before that. And then at that point, he unfreezes time and tracks the action in real-time (present tense). It's a dramatic device.

This thread confims that althouse readers are sports fans and not fans of literary method. Put down your boxing gloves and ponder why Justice Roberts describes the past police scene in the present tense. I failed grammar in school, but a quick google revealed something called the historical present tense. "Sometimes writers shift from past to present tense when telling a story to add vividness to the events. This legitimate tense shift is a literary device called the historical present. It is familiar to readers of epic poetry [and some SCOTUS judgements], but people also use it when relating everyday anecdotes". Quoted from http://www.bartleby.com/64/C001/068.html

Wisconson got lucky this year, at least with their men's team. There is always next year...

Fighting is a lot more tolerated in hockey than in almost any other sport. One thing is that the players are well padded up, another, that they don't have the big differences in size that football has, and, finally, there aren't that many of them.

In (American) football, the players are well padded, but some of the linesmen are almost twice the size of some of in the backfield. Plus, you have eleven on each team, and that is just too many people fighting.

The other thing that has to be remembered about hockey is that the fights are one of the reasons that some at least love the game.

Frankly, I think the parenthetical reference to hockey was intended purely as humor. It's a winking reference to the frequency of fighting in hockey and an allusion to the old joke, "I went to the fights last night and a hockey game broke out."

John Henry:"It seems like every time I hear of a Supreme opinion recently it includes 'Unanimous.' Is this a new phenomenom or just something I'd not noticed before? What is the ration of unanimous decisions since Roberts and, say, the previous 4 years?"

It's hard to say, because often, the internally contentious decisions drag out towards the end of the term, but in any event, I surveyed the state of play mid-term at the end of February, see A collegial start to the Roberts Court, 2/28/06, and concluded that this term thusfar is either the least contentious, or the second least contentious term in the last five years.

I agree with tom t. I took it as a gratuitous slap at hockey; the sport Americans love to hate.

Bruce. Lucky? The men were 30-10-3 last year. And you presumably know that most of those losses came when the 1st string goalie was injured. They were number one seed in the tournament and 1st in the nation for many weeks during the season. Lucky? I don't think so.

Both questions, why the hockey reference and why the present-tense sentence, may be resolved with the same answer: Roberts did not write the opinion and thus did not catch the mistaken tense and did not think too deeply about the odd hockey analogy. Although they are actively involved in the editing process, often Justices leave the opinion writing to the clerks (few Justices could be prolific enough researchers/writers to handle every opinion they are assigned). This is especially true in less controversial cases, such as the present one, where the exact language of the case will not form the basis for precedent for years to come.